General Terms of Sale and Delivery

1. Definitions

• Offers / Deals
  Any Offer by S&K Trucks to enter into an Agreement;
• Goods
  The Goods delivered by S&K Trucks based on the Agreement to or for the benefit of the Counterparty;
• Agreement
  Every agreement between the Parties concerning the sale and delivery of Goods by S&K Trucks to the Counterparty and/or the rendering of services by S&K Trucks to the Counterparty;
• Party/Parties
  S&K Trucks and the Counterparty or each by themselves;
• S&K Trucks
  The private company Sol & Kleene Trucks B.V. in Blokzijl (Chamber of Commerce file number: 80220924), being the user of the Conditions;
• In writing
  By post or electronic message;
• Conditions
  These General Conditions of Sale and Delivery of S&K Trucks;
• Counterparty
  The natural person(s) and/or legal entity(ies) to whom S&K Trucks makes an Offer for the delivery of Goods and/or the performance of services and/or who enters into an Agreement with S&K Trucks.

2. Applicability

2.1 These Conditions apply to all Offers and Agreements, as well as to all obligations arising therefrom and subsequent thereto.

2.2 If the Conditions have been applicable to any Agreement, they shall automatically - without the need for a separate agreement between the Parties concerned - apply to any Agreement concluded between the Parties after such conclusion, unless the Parties have expressly agreed otherwise in writing with regard to the relevant Agreement.

2.3 The applicability to any Agreement of general or specific (purchase) conditions employed by the Counterparty is expressly rejected by S&K Trucks, unless and until S&K Trucks has explicitly declared such conditions to be applicable to an Agreement in writing. Acceptance in this way of the applicability of conditions of the Counterparty to an Agreement does not under any circumstances imply that those conditions tacitly apply to any Agreement concluded subsequently.

2.4 In the event of nullity or nullification by the Counterparty of one or more provisions of the Conditions, the other provisions of the Conditions will remain fully applicable to the Agreement. Parties will consult to replace a void or annulled provision of the Conditions by a provision that is valid or non-annullable and that approaches the purpose and purport of the void or annulled provision as much as possible.

2.5 If an Agreement deviates from one or more provisions of the Conditions, the provisions of the Agreement shall prevail. The other provisions of the Conditions will continue to apply to the Agreement in full in such cases.

2.6 If translations of these Conditions have been issued, the version in the Dutch language shall prevail over the version(s) in any other language.

3. Offers, Agreement and Price

3.1 Unless explicitly stated otherwise, an Offer is without obligation and valid during the period stated in the Offer. If the Offer does not state a period for acceptance, the Offer will in any event expire seven (7) days after the date stated in the Offer.

3.2 An Offer accepted by the Counterparty within the period of validity can be revoked by S&K Trucks within five (5) working days after the date of receipt of the acceptance by S&K Trucks, without this leading to any obligation on the part of S&K Trucks to pay compensation for any loss suffered by the Counterparty.

3.3 Prices stated in an Offer or Agreement are in Euros and - unless explicitly stated otherwise - are exclusive of costs of packaging, transport and other costs of shipment, import documents, (transport) insurance(s), travel time, travel expenses and accommodation costs and also exclusive of turnover tax and/or other government-imposed levies of any kind whatsoever.

3.4 The Agreement replaces and cancels all previous proposals, correspondence, agreements or other communications between the Parties that took place prior to entering into the Agreement, however much they may deviate from or conflict with the Agreement.

3.5 Any changes and/or additions to the Agreement are only valid after written acceptance by S&K Trucks. S&K Trucks is not obliged to accept changes and/or additions to an Agreement and is entitled to demand that a separate Agreement is entered into. S&K Trucks is authorised to charge any costs connected with modifications and/or additions to the Agreement to the Counterparty.

4. Payment

4.1 With regard to the goods and/or services to be delivered by S&K Trucks, S&K Trucks will send an invoice to the Counterparty.

4.2 Payment shall be made within eight (8) days of the invoice date, unless agreed upon otherwise in writing. Payment shall be made into a bank account specified by S&K Trucks. The moment of payment is determined by the moment on which S&K Trucks has received notice from its bank that the amount has been credited.

4.3 If an invoice has not been paid in full within the stipulated period, the Counterparty will immediately be in default by operation of law, without any further notice of default being required, and will owe interest of 1% per month (unless the statutory commercial interest rate is higher, in which case that rate will apply) from the date after the invoice concerned is due, with part of a month counting as a full month. Furthermore all extrajudicial collection costs will be at the expense of the Counterparty, which costs are hereby determined in advance by the parties to be at least 15% of the outstanding claim with a minimum of €150, without prejudice to the right of S&K Trucks to claim the actual extrajudicial costs if these are higher.

4.4 If the Counterparty is in default of payment of any invoice as referred to in Article 4.3, all other outstanding invoices will also be immediately payable, without any further notice of default being required.

4.5 Payments made by the Counterparty shall respectively serve to settle the costs owed, the interest and subsequently the longest outstanding payable invoices, even if the Counterparty states at the time of payment that the payment relates to another invoice.

4.6 Without prejudice to provisions of imperative law, the Counterparty has no right to suspend or set off their payment obligations to S&K Trucks against S&K Trucks' payment obligations to the Counterparty.

4.7 S&K Trucks has the right to offset all claims on the Counterparty against any debt which S&K Trucks may have against the Counterparty, or any of the other (legal) persons associated with the Counterparty.

4.8 All claims of S&K Trucks against the Counterparty are immediately due and payable in the following cases:

• If after the conclusion of the Agreement, S&K Trucks learns of circumstances that give them reasonable grounds for fearing that the Counterparty will not be able to meet their obligations, this will be at the sole discretion of S&K Trucks;
• If S&K Trucks has asked the Counterparty upon entering into the agreement to provide security for the fulfilment of its obligations as referred to in Article 4.9 and this security is not provided or is insufficient;
• In the event the Counterparty applies for bankruptcy or a moratorium, the Counterparty is wound up or declared bankrupt or - insofar as the Counterparty is a natural person - the Dutch Natural Persons Debt Rescheduling Act (WSNP) applies to the Counterparty.

4.9 S&K Trucks is at all times entitled, on the basis of its assessment of the creditworthiness of the Counterparty, to demand security or full or partial payment in advance for the fulfilment of the Counterparty’s due and non-payable payment obligations. If and as long as the Counterparty fails to furnish the required security or make full or partial payment in advance, S&K Trucks shall be entitled to suspend its obligation to deliver.

5. Delivery time

5.1 A delivery time quoted by S&K Trucks within the context of an Agreement is always an indication and can therefore never be considered a deadline, unless the Parties have explicitly agreed otherwise in Writing. Exceeding the agreed delivery time does not in any circumstances give a right to compensation.

5.2 When determining the delivery time, S&K Trucks assumes that it can execute the order under the circumstances as they were at the time of the conclusion of the Agreement.

5.3 S&K Trucks shall only be in default after an agreed time of delivery has been exceeded if it has received a Written notice of default from the Counterparty in which it is given a term of one (1) month to deliver, and it fails to do so within this term. In the event of a dissolution, the Counterparty is not entitled to any compensation unless the exceeding of the term is the result of intent or gross negligence on the part of the management of S&K Trucks and/or its managing subordinates.

6. Method of delivery

6.1 The risk for the Goods to be delivered to the Counterparty shall pass to the Counterparty ex S&K Trucks' warehouse (Blokzijl, The Netherlands), or the warehouse of a third party engaged by S&K Trucks ('Ex Works', as included in the most recent version of the ICC Incoterms) unless explicitly agreed otherwise in the Agreement. Unless explicitly agreed otherwise in Writing between the Parties, the costs of export and import duties, clearance charges, taxes and any other governmental charges of whatever nature connected with the transport and delivery of Goods by S&K Trucks will be borne by the Counterparty.

6.2 Delivery will not occur until the Goods' Purchase Price has been paid in full unless otherwise agreed upon. S&K Trucks has the right at all times to suspend delivery of the Goods or to withhold the registration certificate of the Goods until the purchase price has been paid in full.

6.3 S&K Trucks has fulfilled its delivery obligation by placing the Goods at the disposal of the Counterparty at the agreed time in its warehouse or the warehouse of a third party engaged by S&K Trucks. The delivery document and/or accompanying documents of the carrier, signed by or on behalf of the Counterparty, constitutes full evidence of the delivery by S&K Trucks of the Goods stated in the delivery document and/or accompanying documents.

6.4 The offering of ordered Goods by S&K Trucks to the Counterparty for delivery is considered the same as delivery of those Goods. If the Counterparty refuses to accept the delivery of the goods, S&K Trucks will store the goods for a period of fifteen (15) working days after the date of delivery in a location of its choice. After this period, S&K Trucks is no longer obliged to hold the Goods ordered by the Counterparty at the disposal of the Counterparty and is entitled to sell the Goods to a third party or to dispose of them in any other way. The Counterparty remains obliged to comply with the Agreement by accepting the goods at the first request of S&K Trucks at the agreed price. The Counterparty is also obliged to compensate S&K Trucks for damages resulting from the refusal of the Counterparty to accept the goods, including storage and transportation costs.

7. Retention of title

7.1 All delivered Goods remain the property of S&K Trucks until the Counterparty has fulfilled all their obligations arising from or connected with the agreement(s), including claims for penalties, interest and costs. Until that time, the Counterparty is obliged to keep the goods supplied by S&K Trucks separated from other goods and clearly identified as S&K Trucks property and insure them properly.

7.2 In the event of delivery of Goods to the Counterparty within a territory other than the Netherlands, the Goods in question - if and as soon as they are within the territory of the country concerned - will, in addition to the retention of title stipulated in Article 7.1 under Dutch law, also be subject to a retention of title as stipulated in Article 7.1 under the law of the country concerned, on the understanding that Dutch law will otherwise exclusively apply to the Agreement as stipulated in Article 14.

7.3 As long as Goods delivered are subject to retention of title, the Counterparty may not encumber or dispose of them outside the scope of its normal business operations.

7.4 After S&K Trucks has invoked its retention of title, it may reclaim the delivered Goods. The Counterparty allows S&K Trucks to enter the place where the Goods are located.

8. Acceptance and warranty

8.1 In any case, after S&K Trucks has fulfilled its obligations under the Agreement, the Counterparty will submit the delivered Goods and/or services to an acceptance test within a reasonable period of time (not exceeding two (2) days after delivery). If the Counterparty has not reported defects in writing to S&K Trucks within this reasonable period after delivery. In that case, the delivered Goods and/or services are considered to have been accepted by the Counterparty and to comply with the requirements and performances as laid down in the Agreement.

8.2 Any other defects to the delivered Goods which are not visible at the time of delivery must be reported to S&K Trucks in writing, stating the reasons, within two (2) days of their discovery, failing which the delivered Goods and/or services shall be deemed to have been accepted by the Counterparty and to have met the requirements and performances laid down in the Agreement.

8.3 On goods delivered by S&K Trucks, no warranty is given to the Counterparty because it is a trading company (purchase and sale of goods without S&K Trucks having used or inspected the goods itself). The Counterparty is always given the opportunity to examine the purchased goods and buys the goods in the condition they are in.

9. Expiry dates

9.1 Legal claims and other powers of the Counterparty, of whatever nature, against S&K Trucks in connection with delivered Goods and/or Services rendered, will lapse after twelve (12) months after the date on which the Counterparty became aware or could reasonably have become aware of the existence of these rights and powers. Still, before the expiry of this term, no claim in writing has been submitted to S&K Trucks.

9.2 In the event that within the period stated in Article 9.1, the Counterparty has submitted a claim in Writing to S&K Trucks in connection with goods supplied and/or services rendered by S&K Trucks, all claims of the Counterparty will lapse if S&K Trucks has not taken legal action within a period of four (4) months after receiving the claim in writing before the competent court of law on the basis of Article 14 of the Conditions.

10. Dissolution

10.1 In the event that the Counterparty fails to comply with one or more of its obligations under the Agreement, the Counterparty shall be in default by operation of law, and S&K Trucks shall have the right, without further notice of default or judicial intervention, to dissolve the Agreement partially or wholly unilaterally by means of a written notification to the Counterparty and/or to suspend its obligations under the Agreement, without S&K Trucks being liable for any compensation and without prejudice to any rights to which S&K Trucks is entitled, including the right to full compensation. In these cases, all claims that S&K Trucks may have or obtain against the Counterparty shall be immediately due and payable in full.

10.2 In the event of bankruptcy, suspension of payment, closing down, liquidation or take-over, or any comparable situation of the business of the Counterparty, or if the Counterparty ceases its business, or if a considerable part of the capital of the Counterparty is seized, or if the Counterparty must no longer be considered capable of fulfilling its obligations under the Agreement, the Counterparty shall be in default by operation of law and S&K Trucks has the right to dissolve the agreement, wholly or partly, unilaterally by means of a Written notification, without the obligation of S&K Trucks to pay any damages and without prejudice to its further rights, including the right of S&K Trucks to full compensation.

10.3 If S&K Trucks has problems with the delivery of Goods (irrespective of the reason), S&K Trucks has the right to dissolve the Agreement unilaterally, wholly or partly, without further notice of default and without judicial intervention, by means of a Written notification to the Counterparty and/or to suspend its obligations on the grounds of the Agreement, without S&K Trucks being liable for any compensation and without prejudice to any rights to which S&K Trucks is entitled, including the right to full compensation.

11. Liability and Insurance

11.1 S&K Trucks is liable for damages suffered by the Counterparty, which result from a shortcoming in the execution of the Agreement attributable to S&K Trucks. However, only those damages qualify for compensation against which S&K Trucks is insured, or reasonably should have been insured - given the nature of S&K Trucks' business and the market in which it operates - and only up to the amount which the insurer pays out in that case.

11.2 Not eligible for reimbursement:

• Damage caused by acts or omissions of the Counterparty or third parties in contravention of instructions given by S&K Trucks or in violation of the Agreement and the Conditions;
• Damages as a direct consequence of incorrect, incomplete and/or faulty information supplied to S&K Trucks by or on behalf of the Counterparty.

11.3 If:

• at the time of entering into the agreement, it is not possible for S&K Trucks to take out insurance as referred to in paragraph 1, or not to renew it against reasonable conditions;
• the insurer does not proceed to pay (full or partial) compensation for the damage concerned;
• the insurance does not cover the damage concerned (or a part thereof); 

the compensation of the damage is limited to the amountto which S&K Trucks has agreed with the Counterparty for the agreement in question (excluding VAT), with a maximum of EUR 10,000. If this is the case, then, in addition to the provisions of Article 11.2, any financial loss suffered by the Counterparty, such as - but not limited to - trading loss, consequential loss, loss caused by delay and loss of profit, shall not be considered for compensation.

12. Compliance and indemnification

12.1 The Counterparty guarantees to S&K Trucks that the Goods delivered by S&K Trucks will never, directly or indirectly, be used, sold or resold in violation of national or international sanctions legislation, anti-corruption legislation or similar regulations.

12.2 The Counterparty shall immediately inform S&K Trucks if they suspect that a (final) user of the Goods or (intermediary) dealer is in breach of Article 12.1.

12.3 The Counterparty guarantees S&K Trucks that the obligation imposed upon them in this article will also be imposed upon any party to whom they sell, deliver or give use of the Goods.

12.4 The Counterparty indemnifies S&K Trucks against all claims and demands of third parties (including fines) and all other costs (including costs of legal assistance), which it makes in connection with the situations described in this Article 12. At the first request of S&K Trucks, the Counterparty will compensate S&K Trucks for any damages suffered.

13. Force majeure

13.1 Force majeure is defined as a failure in the performance of an Agreement which cannot be attributed to S&K Trucks.

13.2 The term "Force Majeure" as referred to in Article 13.1, shall, in any case - but not exclusively - be understood to mean a shortcoming as a result of (a) problems at suppliers', (b) fire, (c) special weather conditions (such as floods), (d) government measures (both national and international), including import and export bans, import and export restrictions and other travel restrictions, (d) war, mobilisation, riots, insurrection, state of siege, (e) sabotage, (f) transport restrictions and (g) transport delays.

13.3 In the event of Force Majeure, S&K Trucks has the choice of either suspending the execution of the Agreement until the situation of force majeure has ceased to exist or, after initially opting for suspension, to dissolve the Agreement partially. The Counterparty is not entitled to any compensation in either case. If the period in which fulfilment of the obligations by S&K Trucks is not possible due to Force Majeure lasts longer than thirty (30) days, the Counterparty is also authorised to dissolve the Agreement partially (for the future), with the understanding that S&K Trucks is entitled to send an invoice for the work already done, in accordance with Article 13.4 in the event of a partial dissolution there is no obligation to pay compensation for (possible) damages.

13.4 If S&K Trucks has already partially fulfilled its obligations when the force majeure occurs or can only partially fulfil its obligations, it has the right to invoice that part separately. The Counterparty is obliged to pay this invoice as if it were a separate Agreement.

14. Applicable law and competent court

14.1 All Agreements concluded by S&K Trucks are governed exclusively by Dutch law, excluding the Vienna Sales Convention.

14.2 All disputes between the Parties shall be settled exclusively by the Court of Overijssel, location Zwolle, the Netherlands.